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AUSTRALIAN LAWS

1. Assault.

Any intervention that interferes with a person's
bodily integrity through the use of force, no matter how small, is,
in law, a trespass to the person. A trespass to the person is either
a crime (called "an assault") that can be punished under State and
Territory criminal laws, or it can be a tort or civil wrong (assault
and/or battery), for which, under State and Territory laws, the person
injured can claim damages or compensation from the person who committed
the trespass. Most trespasses committed intentionally - for example,
where a person deliberately punches another - are both crimes and
civil wrongs.

2.Current State/Territory laws of relevance:

Based on advice received from the States and territories, the following
summarizes the current position under the Criminal laws of Australia.
In the case of WA additional information about the Criminal Code was
supplied in the submission from the WA Attorney-General:

South
Australia:

The South Australian criminal law contains "the usual array
of non-fatal offenses against the person and sexual offenses
against minors."

Western
Australia:

Section 222 of the Criminal Code (WA) provides that any application
of force to the person of another without that person's consent
is assault and any assault (unless authorized, justified or
excused by law) is unlawful and constitutes an offense. Apart
from the general provisions in Chapter 5 of the Code relating
to criminal responsibility, various circumstances in which an
assault will be lawful are set out in the Code. For example,
section 257 provides that it is "lawful for a parent or person
in the place of a parent to use by way of correction towards
the child ... under his care, such force as is reasonable in
the circumstances."

The WA code defines "bodily harm"
as "a bodily injury which interferes with health or comfort".
"Grievous bodily harm" means any bodily injury of such a nature
as to endanger life or to cause, or be likely to cause, permanent
injury to health.

Tasmania:

Tasmania expressed the view that "a surgeon who performed
genital mutilation on a girl would be guilty of an assault under
section 184 of the Criminal Code unless that surgeon's conduct
was covered by section 51 of the Code." Section 51 of the Code
relates to consent to medical procedures on children. (The Tasmanian
respondent made no reference to the situation where female genital
mutilation is performed by elder women or "midwives".)

Northern
Territory:

Assault is dealt with in section 186, 187 and 188 of the Criminal
Code (Northern Territory). Section 187 defines "assault" as
"the direct or indirect application of force to the person without
his consent or with his consent if the consent is obtained by
force.." Section 186 states that any person who unlawfully causes
bodily harm to another is guilt of a crime and is liable to
imprisonment for 5 years or, upon summary conviction, to imprisonment
for 2 years. Section 188(2) states that if a person is assaulted
under 16 years of age and the offender is an adult, the offender
is guilty of a crime and is liable to imprisonment for 5 years
or, upon summary conviction, to imprisonment for 2 years. The
NT respondent said that under NT laws "it may be difficult to
succeed in an assault charge where there was consent."

Australian
Capital Territory:

The ACT said that, as elsewhere in Australia, existing criminal
law in the ACT would apply to the practice of female genital
mutilation.

OTHER LAWS OF RELEVANCE

3. The Common Law. At common law some trespasses are not crimes or civil wrong as the
law regards them as justified. This will be the case where, for example,
a valid and effective consent to the trespass has been given by a
person whom the law regards as competent to give consent.

4. In 1989 the
Commonwealth Government (at this time responsible for criminal law
in the ACT) produced a working paper containing proposals to reform
ACT criminal legislation, specifically in relating to offenses against
the person. Included in that working paper was a specific recommendation
to prohibit female circumcision. However, responsibility for criminal
legislation in the ACT fell to the ACT Government before the proposal
was implemented.

5.Child
Welfare legislation. All States and Territories have child care and
protection legislation which authorizes State/Territory authorities
to intervene where a child is at risk of abuse or ill-treatment. Section
4, 10 and 11 of the Community Welfare Act (NT), for example, empower
the authorities to take a child "in need of care" into custody.

6. Section 71
of the Children's Services Act of 1986 (ACT) defines the circumstances
for intervention by the ACT Family Services Branch, the Community
Advocate or the Court when a child is in need of care. One of the
circumstances is where the child has been, or is likely to be, physically
injured. Children may also be considered in need of care where they
have suffered psychological damage of such a kind that their emotional
or intellectual development has, or will be, endangered. Section 139
of the Children's Services Act 1986 (ACT) creates offenses involving
ill-treatment of a child. The Act provides protections for medical
practitioners, police officers and welfare authorities to take such
steps as are considered necessary for the immediate safeguarding of
a child who has been ill treated.

7. In the case
of child abuse allegations made by parties to applications under the
Family Law Act, for example, the actual investigation of the allegations
is carried out by State authorities which have the expertise and the
personnel, supported by legislation, to do such investigations. Council
notes that there are requirements for the reporting of abuse or suspected
abuse and that child welfare authorities are the appropriate bodies
for referral of allegations of abuse under the Family Law Act.

8. Civil actions.
In addition to female genital mutilation being an assault, for which
criminal sanctions might be imposed, it would also constitute a civil
wrong - a trespass to the person (assault and battery) for which personal
injury damages might be available. And, under State and Territory
criminal injury compensation legislation, a person who has had the
procedure performed on her may seek compensation for the injuries
she has suffered.